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Stuart P. Green of Rutgers University Law School addresses an important question: did the website Megaupload actually "steal" anything? The Justice Department thinks so, and is framing its case against the site in those terms. But Professor Green is asking us to take a step back.

In 1962, the prestigious American Law Institute issued the Model Penal Code, resulting in the confused state of theft law we’re still dealing with today. In a radical departure from prior law, the code defined “property” to refer to “anything of value.” Henceforth, it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly. Before long, the code would inform the criminal law that virtually every law student in the country was learning. And when these new lawyers went to work on Capitol Hill, at the Justice Department and elsewhere, they had that approach to theft in mind. Then technology caught up. With intangible assets like information, patents and copyrighted material playing an increasingly important role in the economy, lawyers and lobbyists for the movie and music industries, and their allies in Congress and at the Justice Department, sought to push the concept of theft beyond the basic principle of zero sum-ness. Earlier this year, for example, they proposed two major pieces of legislation premised on the notion that illegal downloading is stealing: the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA) and the Stop Online Piracy Act (SOPA). The same rhetorical strategy was used with only slightly more success by the movie industry in its memorably irritating advertising campaign designed to persuade (particularly) young people that illegal downloading is stealing. Appearing before the program content on countless DVDs, the Motion Picture Association of America’s much-parodied ad featured a pounding soundtrack and superficially logical reasoning:

You wouldn’t steal a car.

You wouldn't steal a handbag.

You wouldn't steal a mobile phone.

You wouldn’t steal a DVD.

Downloading pirated films is stealing.

Stealing is against the law.

Piracy: It’s a crime.

The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.